The People, Respondent,v.Anthony Parson, Jr., Appellant.BriefN.Y.April 26, 2016 To be argued by: DEBORAH K. JESSEY Buffalo, New York (716) 853-9555 Estimated time: 15 MINUTES STATE OF NEW YORK : COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs ANTHONY PARSON, JR. Appellant. BRIEF FOR APPELLANT Erie County Indictment No.2011-2414 Docket No.KA 13-00656 DAVID C. SCHOPP Attorney for Appellant THE LEGAL AID BUREAU OF BUFFALO, INC. 237 Main Street - Suite 1602 Buffalo, New York 14203 TIMOTHY P. MURPHY Chief Attorney Appeals and Post-Conviction Unit DEBORAH K. JESSEY, of Counsel Brief Completed: April 13, 2015 i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ......................................................................... ii QUESTIONS PRESENTED ........................................................................... 1 STATEMENT OF JURISDICTION ............................................................. 2 NATURE OF THE CASE AND FACTS ....................................................... 3 ARGUMENT .................................................................................................... 7 POINT I ............................................................................................................ 7 APPELLANT WAS DENIED DUE PROCESS OF LAW AND EFFECTIVE ASSISTANCE OF COUNSEL (NY CONST., ARTICLE I, § 6; US CONST., AMEND. VI) BY DEFENSE COUNSEL’S DEFICIENT PERFORMANCE AT THE SUPPRESSION HEARING. ............................................................. 7 CONCLUSION .............................................................................................. 29 ii TABLE OF AUTHORITIES CASES Delaware v. Prouse, 440 US 648 (1979). ........................................................14 Mapp v. Ohio, 367 U.S. 643 (1961). ...............................................................13 McMann v. Richardson, 397 U.S. 759 (1970) .................................................. 7 People v. Aiken, 45 NY2d 394 (1978). ............................................................. 8 People v. Arnau, 58 NY2d 27 (1982). .............................................................23 People v. Baldi, 54 NY2d 137 (1981). .............................................................. 8 People v. Benevento, 91 NY2d 708 (1998) ...................................................8, 9 People v. Berrios, 28 NY2d 361 (1971). .........................................................13 People v. Caban, 5 NY3d 143 (2005) ............................................................8, 9 People v. Chennault, 20 NY2d 518 (1967). ....................................................15 People v. Claudio, 83 NY2d 76 (1993). ............................................................ 9 People v. Flores, 84 NY2d 184 (1994) .............................................................. 8 People v. Galak, 81 NY2d 463 (1993). ...........................................................26 People v. Garcia, 20 NY3d 317 (2012) ...........................................................22 People v. Henry, 95 NY2d 563 (2000) .............................................................. 8 People v. Hollman, 79 NY2d 181 (1992). .......................................................23 People v. Ingle, 36 NY2d 413 (1975). ...................................................... 11, 19 iii People v. Lopez, 84 NY2d 425 (1994). ...........................................................21 People v. Neil, 112 AD3d 1335 (4 th Dept 2013) .............................................10 People v. Ortiz, 76 NY2d 652 (1990) ................................................................ 7 People v. Parson, 122 AD3d 1441 (4 th Dept 2014). ................................. 10, 29 People v. Ramos, 122 AD3d 462 (1 st Dept 2014) ...........................................26 People v. Rivera, 71 NY2d 705 (1988). ..........................................................18 People v. Robinson, 97 NY2d 341 (2001)................................................ 14, 15 People v. Spencer, 84 NY2d 749 (1995) .........................................................14 People v. Turner, 5 NY3d 476 (2005) .........................................................9, 18 People v. Vasquez, 217 AD2d 466 (1 st Dept 1995) ........................................13 Strickland v. Washington, 466 U.S. 668 (1984). ...........................................7, 8 Wong Sun v. U.S., 371 US 471 (1963) ...........................................................14 Wren v. United States, 517 US 806 (1996). ....................................................15 STATUTES CPL 240.20-1 (a) .............................................................................................11 CPL 470.15 (3)(c) ............................................................................................29 CPL 710.30 ............................................................................. 10, 11, 20, 21, 22 PL § 265.03 (3) ................................................................................... 3, 5, 9, 29 iv VTL § 375.22 .......................................................................................... 3, 5, 12 VTL § 375.30 .......................................................................................... 3, 5, 13 CONSTITUTIONAL PROVISIONS NY Const., Art. I, § 6 .....................................................................................2, 7 US Const., Amend. IV .............................................................................. 12, 26 US Const., Amend. VI .............................................................................. 2, 7, 8 1 QUESTIONS PRESENTED 1. Was appellant deprived of his state and federal constitutional right to meaningful representation by defense counsel’s deficient performance during the pretrial proceedings and the suppression hearing? Answer: The Appellate Division found that appellant was not deprived of his right to the effective assistance of counsel. 2 STATEMENT OF JURISDICTION This Court has jurisdiction to entertain this appeal and to review the question of whether appellant was denied the effective assistance of counsel to which he is guaranteed by both the New York State and Federal Constitutions (NY CONST., ARTICLE I, § 6; US CONST., AMEND. VI). A dissenting Justice of the Appellate Division, Fourth Department, issued an order, granting leave to appeal to this Court, after a November 21, 2014 Appellate Division affirmance. This Court has jurisdiction to entertain this action pursuant to CPL 450.90. 3 NATURE OF THE CASE AND FACTS On January 31, 2012 appellant Anthony Parson, Jr. was indicted by an Erie County Grand Jury with an armed felony, criminal possession of a weapon in the second degree (Penal Law §265.03[3]). The charge arose from an October 30, 2011, automobile search which resulted in the discovery of a loaded gun in the appellant’s car. Buffalo Police Officer Humiston and his partner passed the appellant’s vehicle late on the night of October 30, 2011, on Fillmore Avenue, in the city of Buffalo. The vehicles were travelling in the opposite direction of each other, at typical speed, with appellant moving in a northbound direction (SH 9-10, numbers in parentheses following SH refer to the May 3, 2012 suppression hearing minutes). The Officers made a U-turn, activating their lights and causing the appellant to pull his car over (SH 5, 10). The reason given for the late- night stop was that the appellant had a “crack” in his windshield and “something” hanging from his rearview mirror (SH 4, 10), which the witness alleged were violations of the Vehicle and Traffic Law (VTL §§ 375.22, 375.30). The appellant was immediately compliant, and pulled his car to the side of the road (SH 5, 11). 4 In response to the approaching officer, the appellant opened his driver’s side window (SH 5). The officer requested his documents, which were in order. No contraband was visible to the officer and he did not express any safety concerns (SH 11). Officer Humiston said he smelled what he believed to be “burnt marijuana”, and “mentioned the smell” to the appellant, who remained seated in the vehicle (SH 6-7). The officer could not recall how he posed the question regarding marijuana, but said appellant provided an affirmative response (SH 6, 14). Officer Humiston’s partner, who had been standing on the passenger side of the vehicle, ordered appellant to exit the car, and the two officers conducted a search of appellant (SH 12). Officer Humiston said that he “went into [appellant’s] right pocket and found a bag of marijuana” (SH 7). Appellant was placed in the patrol vehicle and a search of the automobile yielded a loaded .22 Rohm revolver from the back seat, and two “blunts”. A suppression hearing was held on May 3, 2012, in Erie County Court before the Honorable Michael L. D’Amico, with respect to the legality of the traffic stop and the voluntariness of a statement the appellant purportedly made the night of the arrest. A Buffalo police officer and a police lieutenant testified, describing the alleged violations of the Vehicle and 5 Traffic Law as reasonable suspicion for the stop of the vehicle and the smell of marijuana, in addition to appellant’s statements, as probable cause for the search which resulted in the appellant’s arrest. The appellant argued that the stop for the alleged violations of the Vehicle and Traffic Law (VTL §§ 375.22, 375.30), which were automobile defects, were pretextual. Furthermore, the automobile stop was investigatory in nature, necessitating the suppression of appellant’s statements and the evidence seized. The court (D’Amico, J.) denied the defense motion in all respects. On June 11, 2012 the appellant pleaded guilty to criminal possession of a weapon in the second degree (Penal Law §265.03[3]). He was sentenced on August 28, 2012 to a determinate period of three and one half years imprisonment with two and one half years of post-release supervision. Appellant filed a timely appeal. The Appellate Division rejected appellant’s contention that he was denied the effective assistance of counsel, and that his guilty plea was infirm due to the ineffectiveness of his attorney. Further, the Court found that the police had reasonable suspicion to stop appellant’s vehicle, and probable cause to support the search. On November 21, 2014 the Appellate Division, Fourth Department, affirmed the conviction. 6 On December 8, 2014, appellant applied to a Justice of the Appellate Division, requesting an order granting leave to appeal to this Court. On January 21, 2015, the Honorable Eugene A. Fahey, then a Justice of the Appellate Division, Fourth Department, granted leave to further this appeal. Appellant is currently serving his sentence. 7 ARGUMENT POINT I APPELLANT WAS DENIED DUE PROCESS OF LAW AND EFFECTIVE ASSISTANCE OF COUNSEL (NY CONST., ARTICLE I, § 6; US CONST., AMEND. VI) BY DEFENSE COUNSEL’S DEFICIENT PERFORMANCE AT THE SUPPRESSION HEARING. The Sixth Amendment to the United States Constitution guarantees that “the accused” be provided “the Assistance of Counsel for his defence.” The right to counsel is “the right to the effective assistance of competent counsel” (McMann v. Richardson, 397 U.S. 759, 771 [1970], People v. Ortiz, 76 NY2d 652, 655-656 [1990]), which is further defined as “reasonable” representation (Strickland v. Washington, 466 U.S. 668, 691 [1984]). When tasked with evaluating possible ineffective assistance of counsel, a court must consider whether, in light of all circumstances, “the identified acts or omissions” of an attorney breach the wide range of reasonable professional judgment (id at 690). 8 The New York State Constitution, as well as New York State jurisprudence, amplifies the Sixth Amendment guarantee to counsel in criminal proceedings. Here, counsel’s representation must be “meaningful”, when “viewed in totality” (People v. Henry, 95 NY2d 563, 565 [2000]; People v. Flores, 84 NY2d 184, 188 [1994]; People v. Benevento, 91 NY2d 708, 712 [1998]; People v. Baldi, 54 NY2d 137, 147 [1981]). The New York State standard of meaningful representation does not require a strict showing of prejudice, such that “even in the absence of a reasonable probability of a different outcome” (People v. Caban, 5 NY3d 143, 156 [2005]), a finding of ineffectiveness may still warrant reversal of a criminal conviction. “Judicial scrutiny of counsel’s performance must be highly deferential” (Strickland, 466 U.S. at 689), to ensure that reviewing Courts “avoid confusing true ineffectiveness with mere losing tactics” (Benevento, 91 NY2d at 712, citing Baldi, 54 NY2d at 146). An evaluation of trial counsel’s legal representation must center on whether counsel’s acts or omissions deprived the defendant of a fair trial (People v. Aiken, 45 NY2d 394, 401 [1978]). This Court has held that even one error, if “egregious and prejudicial”, may constitute ineffective assistance of counsel (People v. Turner, 5 NY3d 476, 481 [2005], citing Caban, 5 NY3d at 152). The 9 fundamental right to the effective assistance of counsel goes to the heart of the adversarial process that is our criminal justice system, “because of the effect it has on the ability of the accused to receive a fair trial” (Benevento, 91 NY2d at 712, citing People v. Claudio, 83 NY2d 76, 80 [1993]). The issue at bar is whether appellant received the effective assistance of counsel, to which he was entitled, during the pretrial posture of the criminal case. Specifically, did counsel’s representation fall below the standard of meaningful representation, and was appellant denied a fair suppression hearing, as a result of counsel’s ineffectiveness? It is undisputed that the appellant pleaded guilty to criminal possession of a weapon in the second degree (PL §265.03 [3]), after the hearing court denied suppression of inculpatory statements he made to the police, as well as the gun recovered from the backseat area of his car. The Appellate Division, Fourth Department, found that appellant’s contention that he was denied the effective assistance of counsel survived his guilty plea to the extent that he contended his plea was infected by the alleged ineffective assistance of his attorney (People v. Neil, 112 AD3d 1335, 1336 [4 th Dept 2013]; People v. Parson, 122 AD3d 1441, 1442-1443 [4 th Dept 2014]). The record evidence upon which this Court is to evaluate the ineffective assistance of counsel claim is admittedly small; it is limited to the 10 suppression hearing and three additional appearances, including the plea date, as well as pretrial motions. This scant record is consistent, however, with the lack of due diligence afforded him by trial counsel. The Suppression Hearing Asserting lack of probable cause for the initial traffic stop, counsel moved to suppress the evidence resulting from the seizure. Counsel filed a Notice of Motion, dated April 10, 2012, for discovery, including a Bill of Particulars (see Appellant’s Appendix, page 10). Counsel further demanded details of any “alleged oral admission” made by appellant to law enforcement (Appellant’s Appendix, page 18). The People filed a Notice to Defendant of Intention to Offer Evidence at Trial, pursuant to CPL 710.30, documenting one alleged statement made by appellant. The 710.30 Notice states thusly: On October 30, 2011 in patrol vehicle #164, Buffalo to Lt. M. Jones, “It’s my friend’s vehicle. He’s overseas with the Army and I’ve had the car for a couple of months. He let me use it. I didn’t know the gun was in there. I had people in the car today. I don’t know who was in the car.” (Appendix at page 9) The People served an answering affidavit dated April 25, 2012, (Appellant’s Appendix, page 23) in which they state, in pertinent part, “The People previously have served on the defendant and filed with the Court a 11 notice of intention pursuant to CPL 710.30, and the People are aware of no other information which falls within the purview of CPL 240.20-1 (a)” (Appellant’s Appendix, page 25; see also February 7, 2012 arraignment transcript, page 2). Attachments to the affidavit relate to laboratory requests for testing of marijuana and the revolver. A suppression hearing was held approximately two weeks later on May 3, 2012. The People noted that the matter was scheduled for a Huntley hearing, as “It is the only hearing that defense counsel moved for in his motion papers” (SH 2). Counsel moved to amend his suppression motion, stating that he was requesting an Ingle hearing, and added “I should have put it in my papers initially” (see People v. Ingle, 36 NY2d 413 [1975]). The court did not specifically respond to counsel’s request, and the hearing was held. A. Lack of Probable Cause For The Stop Counsel clearly identified the issue at hand, however belated, as a question of the legality of the traffic stop for the alleged VTLs. Law enforcement brought defendant-appellant’s motor vehicle to a stop when they purportedly noticed physical defects, which allegedly constituted two 12 violations of the Vehicle and Traffic Law (VTL) specific to the maintenance of automobiles. Thus, the police action, at its inception, was rich ground for exploration relative to the issue of suppression. Seizure of a motor vehicle, absent reasonable suspicion, is arguably violative of appellant’s Fourth Amendment rights. The propriety of the stop for the alleged traffic infractions, therefore, necessitated examination. Turning to the statute, New York State Vehicle and Traffic Law §375.22 states, in pertinent part: It shall be unlawful to operate a motor vehicle upon the public highways of this state which is equipped with any glass which is so broken, fractured or discolored as to distort visibility. (emphasis supplied) The Vehicle and Traffic Law further states thusly: It shall be unlawful for any person to operate a motor vehicle with any object placed or hung in or upon the vehicle, except required or permitted equipment of the vehicle, in such a manner as to obstruct or interfere with the view of the operator through the windshield, or to prevent him from having a clear and full view of the road and condition of traffic behind such vehicle. (VTL §375.30, emphasis added) 13 Adopting the premise that suppression is the most effective line of defense in this armed felony, counsel’s focus should have been resolute; to exclude as a matter of law appellant’s statement to law enforcement, and the proceeds of the physical search, on the basis that it was the product of an illegal search and seizure (Mapp v. Ohio, 367 U.S. 643, 658-659 [1961]). It is well settled that the People bear the burden of establishing the legality of the police conduct in the first instance (People v. Vasquez, 217 AD2d 466, 471 [1 st Dept, 1995]; People v. Berrios, 28 NY2d 361, 367-368 [1971]). Implicit in this concept is that the testimony offered by the People in first presenting their case must be credible (id at 368). The People carried the burden of proving that the officer seized appellant’s vehicle based on reasonable suspicion of the two cited VTL infractions. Without such an offer, all observations and actions subsequent to the illegal stop should have been disregarded by the hearing court. It has long been the law that people have the right to be let alone, free of unreasonable searches and seizures. This Court informed us in People v. Robinson, 97 NY2d 341, 351 [2001], that police conduct in traffic stops is evaluated against an objective standard, which the Vehicle and Traffic Law provides. Nonetheless, the stop of an automobile is a seizure implicating constitutional limitations (People v. Spencer, 84 NY2d 749, 752 [1995]), even 14 where the stop is limited and the resulting detention is brief (Delaware v. Prouse, 440 US 648, 653 [1979]). Given the compelling gravity of the question of an illegal seizure, it was imperative that defense counsel pursue the propriety of the stop, to the point of exhaustion. It is well settled that an illegal search, whether conducted in an automobile or in another situation, will lead to suppression of the “fruit of the poisonous tree” discovered as a result of that illegal search (see Wong Sun v. U.S., 371 US 471, 484-485 [1963]). Here, counsel’s sole strategy should have been to adduce evidence upon which the hearing court could grant suppression of appellant’s allegedly inculpatory statement, the marijuana and the gun. The fruit of the poisonous tree rule was created to discipline law enforcement officers and has no bearing on the determination of guilt (People v. Chennault, 20 NY2d 518 [1967]). An illegal seizure of appellant’s car, at the outset, militates suppression of his later statements to law enforcement. Here, counsel was tasked with assessing whether the officer engaged in “bootstrap rationalization”; in other words, tailoring the testimony to meet constitutional objections. The officer’s testimony must be viewed in totality, and his veracity must be vetted. The stop cannot have been based on 15 whim or caprice; there must have been articulable indicia of criminality, which a VTL infraction can supply. Robinson further instructs that while a VTL violation may trigger a car stop, the discretion of the attendant officer is also limited by the VTL infraction (see also Wren v. United States, 517 US 806, 810 [1996]). The officer’s conduct post-stop, therefore, is also rich soil from which the defense can harvest information upon which the court may invalidate the state intrusion. The suppression hearing consisted of testimony from the arresting officer, as well as the Lieutenant who arrived on scene, post-arrest. Officer Humiston said that he was on routine patrol in the City of Buffalo when his attention was drawn to appellant’s vehicle due to a large crack in the windshield, in addition to “something” hanging from his rearview mirror. Based on the suspected violations of the VTL, the officer made a U-turn and executed a stop of the car. The testimony of Officer Humiston was the only proof offered that the traffic stop was constitutional. The People offered no photographs, and the Lieutenant offered no independent evidence regarding the alleged VTL violations. 16 On cross-examination, the defense failed to adduce any evidence upon which the court could have found the stop illegal. Common sense dictates that counsel should have familiarized himself with the applicable statute subsections, and taken an unswerving road to verify the truthfulness of the officer’s alleged observations. The officer testified that it was late at night when the vehicles passed on a Buffalo City street, but he was still able to see a crack in glass, and “something” hanging from a rearview mirror (SH 4-5). He never identified what he saw hanging from the mirror, nor did he ever allege that the object or the cracked glass obstructed or distorted driver visibility, as proscribed by statute. Yet, inexplicably, defense counsel failed to make the most minimal of inquiries in either regard. Counsel’s cross-examination of the witness was deflated and hollow. Counsel displayed the most rudimentary of efforts, exhibited by the following record: Question: So, I take it you had to turn around to get to him, is that correct? Answer: Yes. Question: Did you put your overhead lights on? Answer: Yes, I did. 17 Question: And you said you noticed something hanging from the rearview mirror? Answer: Yes. Question: And that’s what drew your attention to the vehicle? Answer: Well, that and the cracked windshield. Question: And this was about, you said about 11:00 at night? Answer: Yes. Question: And the lighting at that point in time was enough that you were able to see the cracked windshield? Answer: Yes. (SH 10-11) All of the testimony elicited on cross-examination mirrored the officer’s direct testimony. Not one statement was new or different. It appeared counsel had absolutely no concept of how to proceed in a manner helpful to his client. Defense counsel lacked strategy, and as a result, failed to persuade the court that the stop constituted an unlawful seizure of appellant. “To prevail on a claim of ineffective assistance of counsel, it is incumbent on [appellant] to demonstrate the absence of strategic or other legitimate explanations” for defense counsel's allegedly deficient conduct 18 (People v. Rivera, 71 NY2d 705, 709 [1988]). Counsel’s failure to ask any questions that would have elucidated the circumstances of the stop was, indeed, egregious and harmful to appellant (see People v. Turner, supra). Even though the purpose of the stop was purportedly due to the motor vehicle equipment infractions, the officer was never compelled to recount these infractions, or his understanding of the law upon which he relied in effectuating the stop. Appellant was, indeed, denied his right to a fair suppression hearing by counsel’s omissions. Obvious details which were never addressed go to the heart of whether the officer was, in fact, able to see the alleged motor vehicle defects prior to stopping appellant. Weather and lighting conditions at 11:00 p.m. on an October night in Buffalo, New York certainly vary from night to night. It may have been snowing (not unheard of), or it may have been raining. Additionally, Fillmore Avenue may not have had street lights activated in the area where the vehicles intersected. The size of the alleged break in the windshield deserved exploration. Further, it was worth noting that the officer failed to report any conversation with appellant about the vehicle defects. Yet, counsel missed an opportunity to draw the court’s attention to the lack of any discourse surrounding the cause for the car stop. Certainly, it is reasonable to believe 19 that the typical traffic stop begins with the officer announcing the reason for the stop. The typical “do you know how fast you were going?” was absent here. It is this type of questionable recounting of events that may have seemed illogical to the court, and may have resulted in a grant of suppression. Although counsel requested the Ingle part of the suppression hearing minutes before the first witness was called, he failed to execute any trial strategy in that regard. His omissions resulted in direct harm to appellant when the trial court found reasonable suspicion, based on the purported VTL violations, for seizure of appellant and his vehicle. B. Pre-Miranda Statements The Prosecutor’s direct examination of the arresting officer took a surprising twist when he proceeded to elicit an alleged statement made by the appellant to the officer, which was not disclosed in the 710.30 Notice. This alleged inculpatory admission is pivotal, as the officer relied on the alleged admission as probable cause for the search of appellant. Officer Humiston requested that appellant provide his license and registration when he approached the vehicle. Appellant complied with the request, and his documents were in order. The officer then said that “immediately, as he rolled the window down I smelled what, to me, was burnt marijuana” (SH 6). He claimed that he “mentioned the smell of the 20 marijuana” and “[appellant] responded that yes, he had been smoking” (SH 6). Counsel failed to seize on this violation of his client’s due process rights, and move that the statement be precluded, as no notice had been given and this was clearly an inculpatory custodial statement made to law enforcement. Minimally, counsel should have objected to this testimony, moved for preclusion, and sought a ruling from the court as to the admissibility of the statement. It is well settled that the accused is entitled to preclusion of statements he made to police if the People did not serve a 710.30 Notice on him, or his defense counsel, within fifteen days of arraignment, even if no prejudice to the defendant resulted from the failure to serve the Notice in a timely manner (CPL 710.30, People v. Lopez, 84 NY2d 425, 503-504 [1994]). As this Court instructed in Lopez, supra, the inadequacy of the notice cannot be cured by discovery (id at 504). A defendant cannot challenge that of which he lacks knowledge, and the 710.30 Notice was constrained to a post-Miranda statement made by appellant to the Lieutenant, not Officer Humiston. The People were able to proceed unencumbered, given the inaction of defense counsel. Had the defense made a Motion for Preclusion, 21 counsel could have requested an adjournment of the hearing to brief the matter for the court. The prosecution may well have admitted their failure to comply with CPL 710.30, as it is extremely unlikely that they were unaware of this defect. Unfortunately, counsel missed this opportunity to protect his client, and the statements were admitted into evidence. Mistake cannot be asserted, as defense counsel exhibited knowledge that the 710.30 Notice was deficient when he made the bare statement: “That wasn’t in the 710.30, Judge” (SH 14). This acknowledgement fell short of an objection, and certainly did not serve to protect appellant’s right to a fair trial. The harm here is the alleged admission of appellant that he “had been smoking” (SH 6). It is this statement that resulted in the search of appellant’s pockets for marijuana. Once the small amount of marijuana was found (a violation level amount, verifiable by the attachment to the People’s responding affidavit), appellant was arrested and the car was searched. Of great import here, is the discovery of the loaded gun in the backseat of the vehicle (Appellant’s Appendix, at pages 28, 35-36). C. No Founded Suspicion for the Search 22 The officer claimed that he “smelled marijuana” (SH 6) but could not recall what exactly he said to the appellant regarding this impression. He admitted that he posed a direct question regarding drug use to the appellant at that time. Consistent with the DeBour/Hollman framework adopted in People v. Garcia, 20 NY3d 317, 324 [2012], relative to traffic stops, the question becomes whether there was founded suspicion of marijuana use to justify the inquiry. An officer’s direct question regarding possession of illegal substances or weapons, a level II intrusion, is “activated by a founded suspicion that criminality is afoot” (id at 322, citing People v. Hollman, 79 NY2d 181, 185 [1992]). Appellant’s response to questions regarding illegal drugs, absent reasonable suspicion, mandates suppression. Evidence which is obtained as a result of illegal police conduct cannot be marshalled as evidence against a defendant at trial (People v. Arnau, 58 NY2d 27, 33-34 [1982]). In addition to admitting his lack of recall regarding his question to appellant, Officer Humiston could not recall appellant’s exact response to his question (SH 13-14). Nevertheless, based on this exchange, appellant was directed to exit the vehicle and the officer conducted a pat-frisk, in which he admits he inserted his hand inside appellant’s pants pocket to discover a nominal amount of marijuana, contained in a bag (SH 7). 23 It is this discovery that lead to appellant’s arrest, and his removal to the patrol vehicle. The inventory search of the vehicle was then conducted, which produced the gun, secreted under clothing in the back of the car (SH 8, 12). Defense counsel here missed yet another opportunity to examine the validity of the search and the admissibility of appellant’s statements to the police. Officer Humiston was unable to recall the details of his conversation with appellant specific to marijuana. He admitted that he could not swear to the parameters of his question, yet counsel failed to explore this obvious deficit in his testimony. Clearly, a direct question by police regarding drug possession, upon initial interaction with a motorist, should set afire any competent defense counsel conducting a suppression hearing. The fact that this witness admitted poor recall, should have been used to appellant’s advantage. The hearing court needed to assess whether the question exceeded constitutional limits. Inexplicably, counsel was no help in this regard. Counsel’s cross-examination of Officer Humiston regarding the propriety of his dialogue with the appellant regarding marijuana was limited to exactly one question, as such: Question: And what did you ask him? 24 Answer: I asked him about the marijuana. (SH 11) The Officer’s response could not have been vaguer. He used the term “the marijuana”, which begs obvious questions. He did not reference the “smell” of marijuana, and certainly did not describe smoke, or a wafting marijuana cloud exiting the motor vehicle. He did not describe the scent at all. Nor did he allege that appellant appeared under the influence of marijuana by the often heard descriptors of having “glassy” or “red” eyes. There was no evidence offered that the witness was trained in the identification of illegal substances to substantiate his alleged ability to identify the “smell” of marijuana. Counsel certainly could have explored the details of the “blunts” recovered from the vehicle, as well. One was was said to have been enclosed in the center console. Yet he failed to ask if the smell was emanating from the blunt, if the blunt was warm, or even if the blunt appeared to have been smoked at all. These were all lost opportunities to defend appellant. Of greatest harm to appellant, was the gun charge he sustained when the police searched the backseat of the vehicle. Again, counsel failed to 25 ask any questions regarding the reasonableness of the full automobile search conducted by the arresting officers. Counsel should have asserted that the search of the backseat of the car was not justified by the “automobile exception” to the warrant requirement in the case at bar. Recovery of the violation amount of marijuana and one blunt does not provide probable cause to believe that contraband or evidence of a crime would be found in the back of the car (People v. Ramos, 122 AD3d 462, 465-466 [1 st Dept 2014], citing People v. Galak, 81 NY2d 463, 467 [1993]). Yet, counsel did not even attempt to defend his client’s Fourth Amendment right to be free of unreasonable state intrusions. Given such weak evidence upon which the People based the reasonableness of the search, the court conducted its own inquiry in this regard, clearly seizing on the import of the details. In response to a direct question from the court, the officer offered thusly: THE COURT: Could you be just a little bit more specific. What exactly did you say to him? On direct you said you asked him for his documents and you said something about smoking marijuana. Do you remember what you said? THE WITNESS: I really don’t. I was looking to see my grand jury testimony on it. THE COURT: Well, what do you usually say? Give me your license and registration? 26 THE WITNESS: Yes. I would ask for his license and registration and if I did smell marijuana I would say, you know, I smell marijuana. Do you have marijuana or were you smoking marijuana, something to that effect. THE COURT: You testified that you did smell marijuana, correct? THE WITNESS: Yes. THE COURT: So your question was something like what, are you using marijuana? WITNESS: Well, it would have been, are you smoking marijuana or did you smoke marijuana or do you have marijuana.” Something to that effect. I’m not even sure exactly what. (Suppression hearing transcript, pages 13-14) The court engaged in its own discovery by the extensive, and arguably, leading, questions it posed to the arresting officer. While the court may have intended to clarify information, it in fact inserted evidence into the record that the People had failed to elicit from the witness. The Court led Officer Humiston to agree that the question he posed was “are you using marijuana?” This is very different than the arguably improper question of “do you have marijuana”? It was clear that the officer could not recall his question. This, therefore, calls into doubt Officer 27 Humiston’s veracity when he attested that appellant admitted smoking marijuana. It is reasonable to suspect revisionist history here, since it defies common sense that one can be both uncertain and certain about a specific question and answer. Again, counsel was silent. At closing, the defense offered the following regarding his client’s alleged statements to police: COUNSEL: In reference to the statements, Judge, the first officer testified that they smelled burnt marijuana in the vehicle. The Miranda warnings that were supposedly given to my client, he could have been under the influence of marijuana not being able to understand exactly what was being said to him, not really being able to waive those rights. And based on that, Judge, I think the statement should be suppressed. THE PEOPLE: I have no response, Judge. (SH 24) Even at this late stage, counsel fails to take the opportunity to make a cogent argument on behalf of appellant. He accepts the officer’s statement as fact (smelled burnt marijuana) and proceeds to add a troubling factor into the court’s body of considerations: perhaps appellant was so intoxicated on marijuana that he didn’t know what was happening at the time of the arrest. Further, counsel appears to be requesting suppression of the 28 innocuous post-Miranda statements he made to the Lieutenant, not the constitutionally violative statements that he should have moved to preclude. The Appellate Division, Fourth Department, found: “Defendant's contentions concerning the propriety of the search of his person and his vehicle are not preserved for our review (internal citations omitted), and we decline to exercise our power to review them as a matter of discretion in the interest of justice ( see CPL 470.15[3][c] )”. (People v. Parson, 122 AD3d at 1442) At the time of appellant’s plea of guilty to criminal possession of a weapon (PL § 265.03[3]), counsel failed to preserve his arguments for appellate review. For all the forgoing reasons, appellant was denied the effective assistance of counsel to which he was entitled, and, as such, he suffered prejudice when the hearing court denied suppression of his statements to police, as well as the marijuana and gun discovered in his vehicle. 29 CONCLUSION WHEREFORE, appellant Anthony Parson, Jr. requests that this Court find that he was denied the effective assistance of counsel, and, as such, requests that this Court vacate his plea of guilty to criminal possession of a weapon in the second degree, and grant such other relief as to this Court seems just and proper. Respectfully submitted, ANTHONY PARSON, JR., APPELLANT By his Attorney DAVID C. SCHOPP, CHIEF EXECUTIVE OFFICER THE LEGAL AID BUREAU OF BUFFALO, INC. Dated: Buffalo, New York April 10, 2015 ________________________________________________ DEBORAH K. JESSEY, of Counsel